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COVINGTON v. DISTRICT OF COLUMBIA

December 13, 1993

DARRYL COVINGTON, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, et al., Defendants.



The opinion of the court was delivered by: LAMBERTH

 This case comes before this court on plaintiffs' motion for an award of attorney's fees under 42 U.S.C. § 1988, the Civil Rights Attorney's Fee Award Act of 1976. Having considered the extensive pleadings and evidence of both parties, this court shall grant plaintiffs' motion.

 I. BACKGROUND

 The case underlying this attorney's fee litigation was brought by ten inmates of the District of Columbia's correctional facility at Lorton. The inmates alleged that while shackled and handcuffed, they were severely beaten by correctional officers in October 1986. Nine of the inmates further alleged that prison authorities found them guilty of misconduct and sent them to a maximum security facility without proper hearings.

 The inmates, who could not afford legal fees, were represented by counsel who took their case on a contingent fee basis. Mr. Daniel Schember and Mr. Michael J. Gaffney of the law firm of Gaffney & Schember, P.C., were lead counsel for plaintiffs. They were aided by Ms. Linda Delaney, a solo practitioner who participated in discovery, trial preparation and trial; Professor Mark Hager, a professor at American University's Washington College of Law who researched legal questions and identified and interviewed witnesses; Georgetown University Law Center graduates Mr. Darryl Joe and Ms. Tess Ferrera; and law students from American University's Washington College of Law who worked under Mr. Schember's supervision. *fn1"

 Plaintiffs' counsel handled very well this complicated federal case, which involved the constitutional claims of ten plaintiffs against sixteen defendants, lengthy discovery, many motions and a jury trial. Counsel won partial summary judgment for the nine plaintiffs sent to the maximum security facility, won judicial sanctions against defendants for their failure to respond to requests for admissions and related interrogatories, and took full advantage of certain key facts that defendants were forced to concede. After trial, the jury found for all plaintiffs against all defendants on all issues tried.

 After the court denied defendants' motion for judgment notwithstanding the verdict, defendants appealed. The parties settled while the appeal was pending. Under the settlement, defendants paid each plaintiff $ 25,000 and conceded that plaintiffs were prevailing parties for the purposes of § 1988.

 After settling the underlying litigation, the parties negotiated an interim agreement on attorney's fees, approved by this court by an Agreed Order dated December 20, 1991. In the Agreed Order, the parties stipulated as to the number of hours plaintiffs' counsel reasonably spent on the case, and settled plaintiffs' claim for legal expenses incurred up to the date of the Agreed Order.

 The parties did not resolve, however, the hourly rates at which counsel should be compensated. Under the Agreed Order, counsel accepted $ 125-150 per hour -- the rates plaintiffs' counsel ordinarily charged paying clients *fn2" -- from defendants for the interim, without conceding that that rate was all that was due. Also unresolved in the Agreed Order was whether defendants must compensate plaintiffs for the market value of the hours reasonably expended by the law students.

 The Agreed Order stayed further proceedings in this case pending the Supreme Court's resolution of the issue of contingency fee enhancements. *fn3" Because the Supreme Court has since resolved that issue in City of Burlington v. Dague, 120 L. Ed. 2d 449, 112 S. Ct. 2638 (1992), plaintiffs now seek a final award of attorney's fees.

 The issue now before this court is the amount of attorney's fees to which counsel are entitled. Specifically, this court must decide what the reasonable hourly rate for plaintiffs' counsels' legal services is, whether plaintiffs may recover fees for the stipulated time of the law students who worked on this case, whether plaintiffs should receive current or historic rates, and whether plaintiffs are entitled to fees for this fee litigation.

 II. ATTORNEY'S FEES

 A. Counsel

 1. Reasonable Hourly Rate

 The most difficult issue in this case is establishing the reasonable hourly rate. In § 1988 cases, "the initial estimate of a reasonable attorney's fee" -- the so-called lodestar fee -- "is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate. Adjustments to that fee then may be made as necessary in the particular case." Blum v. Stenson, 465 U.S. 886, 888, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984) (citations omitted). The parties in this case have already stipulated as to the number of hours counsel have reasonably worked on this litigation, and plaintiffs are not seeking any enhancement of the lodestar figure. Thus, the central contested issue in this case is the calculation of a reasonable hourly rate.

 Calculating the reasonable hourly rate of lawyers in purely commercial law firms is relatively easy. The reasonable hourly rate of lawyers in purely commercial law firms is presumed to be the rate such lawyers charge paying clients for similar services, within certain parameters. See Laffey v. Northwest Airlines, Inc., 241 U.S. App. D.C. 11, 746 F.2d 4, 24-25 (D.C. Cir. 1984), overruled in part on other grounds, Save Our Cumberland Mountains, Inc. v. Hodel [SOCM ], 857 F.2d 1516, 1520 (D.C. Cir. 1988) (en banc). Calculating the reasonable hourly rate of lawyers who lack established billing histories is more difficult. Lawyers working in private legal aid organizations, for example, often do not receive fees for their legal work and thus necessarily lack any billing history that could serve as their presumptively reasonable rate; for them, a district court must determine the "prevailing market rates in the relevant community," and award counsel that as the reasonable hourly rate. Blum, 465 U.S. at 895. In the D.C. Circuit, this latter method of calculation is also used to determine the attorney's fees owed to "privately practicing but public interest motivated attorneys who intentionally charge their poorer clients reduced rates." SOCM, 857 F.2d at 1520.

 Plaintiffs' counsel argue that they are privately practicing attorneys who charge some of their poorer clients reduced rates out of public interest motives, and defendants have failed to disprove that. *fn4" Defendants have not challenged plaintiffs' declarations showing that Gaffney & Schember, P.C., has a history of handling civil rights and civil liberties cases either without charge or at "below-market rates" for non-economic reasons. Nor have defendants countered plaintiffs' evidence that Ms. Delaney similarly charges reduced rates for her legal work out of public interest motives. Most significantly, defendants have not produced enough evidence to show that plaintiffs' counsels' ordinary billing rates -- about $ 150 per hour -- are not below market value. (This failure is discussed below.) Because plaintiffs' assertions that their counsel have taken public interest cases for below-market rates are reasonably ...


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